Does the Chamber of Commerce Have Standing to Challenge Philadelphia’s Wage Equity Law?

Philadelphia’s freshly minted wage equity law was supposed take effect next Tuesday, but the city voluntarily put the brakes on the law pending the resolution of a lawsuit against it. The Greater Philadelphia Chamber of Commerce seeks a preliminary injunction against the law and the first order of business in court has been to determine whether the Chamber even has standing to challenge the law.

In a brief submitted at the beginning of the month to the U.S. District Court for the Eastern District of Pennsylvania, the city argued that the Chamber lacks standing mainly because it has failed to reveal exactly which of its members will be affected by the law and how.

“Facts about those alleged members, including their names, practices, and any harms they have suffered, remain a mystery as the Chamber has studiously avoided identifying any individual member that will be harmed,” counsel for the city wrote. The brief also urges the court to question the Chamber about these individual members before looking into the claim that the law impedes employers’ free speech. (We’ve also questioned which Chamber members claim the law will harm them.)

The Chamber responded to the city’s argument in a brief of its own last Friday and asserted that it “obviously” has standing. Because the Chamber’s members conduct business and hire in Philadelphia, they will be subject to the law and therefore “harmed by its restrictions,” counsel wrote. The brief also argues that the city’s is only asking about the Chamber’s members in order to expose the employers who have the “temerity” to oppose its new law.

Mayor Kenneysigned the wage equity bill into law on January 23, 2017 after City Council passed it unanimously in December 2016. The ordinance makes it unlawful for employers to ask job applicants how much they’ve earned in the past, a restriction the city hopes will curb hiring discrimination and the gender wage gap.

The Chamber of Commerce decided to sue the city over the law, which they’ve called an overreach, a sign of Philly’s anti-business climate and a breach of employers’ First Amendment rights.

“Our biggest concern is that laws are getting passed at the municipal level that are different from what’s happening in other cities or even at the state level,” Chamber vice president of legislative affairs Liz Ferry told me after the organization submitted its latest brief. “As a Chamber that serves a region, we have concerns about the City of Philadelphia passing ordinances that are more restrictive than the State’s. It makes us less competitive because companies are more likely to locate outside of the city that has more strict ordinances.”

Ferry said the Chamber’s alternative to the wage equity law is Senate Bill 241 currently pending in the State House. “It provides for the prohibition of discrimination at the state level, and it’s the law we’re championing at this time,” she told me. “We support it because of its broad implications.”

The court must determine whether the Chamber has standing before it can decide whether to grant the organization’s motion for a preliminary injunction.